State v. Whiteside

• Decision Date: 14 June 1933
• Docket Number: No. 588.,588.
• Citation: 169 S.E. 711,204 N.C. 710
• Court: North Carolina Supreme Court
• Parties: STATE. v. WHITESIDE et al.

204 N.C. 710

169 S.E. 711

STATE.

v.WHITESIDE et al.

No. 588.

Supreme Court of North Carolina.

June 14, 1933.

Appeal from Superior Court, Buncombe County; Alley, Judge.

Robert Whiteside, alias Whitloe, and Pete Cannon were convicted of conspiracy to rob a theater, and Pete Cannon appeals.

No error.

Criminal prosecution tried upon indictment charging the defendants with conspiracy to rob the Imperial Theatre in Asheville.

It is in evidence that the defendants live in McDowell county, and were acquainted with each other, having spent fifteen or twen ty days in jail together during the fall of

1932. They "bummed" their way to Asheville on a freight train Friday, January 27,

1933, and stayed at the Salvation Army that night. The next day, between 3 and 4 o'clock, they met Ralph McDuffie at the "Pastime Pool Room, " and told him they were just traveling around together, going to Knoxville. Cannon asked McDuffie, who apparently was an old acquaintance, if the Imperial Theatre, about half a block away, would be a good place to hold up, or if there were any good places in Asheville which he or anybody might rob and get away with it. McDuffie saw the defendants together again that night about 7:30. At 9:45 when the manager of the Imperial Theatre went to get the money and tickets from the box office, the defendant Robert Whiteside stepped up with a gun in his hand and said: "Stick 'em up, and tell the cashier to push out the money." Just as the money was handed to Whiteside, he was covered by a member of the sheriff's office and arrested. He dropped the money on the sidewalk and the manager of the theater picked it up.

The defendant Whiteside pleaded guilty and was offered as a witness for Cannon. He testified that Ralph McDuffie was mistaken in saying Pete Cannon was with him at the "Pastime Pool Room"; that he alone discussed the matter with McDuffie; and that McDuffie suggested the Imperial Theatre as a good place to rob, and said he would help do it himself. He further testified that Cannon had nothing to do with the holdup and was not a party to any conspiracy; that he wrote a letter to Cannon while in jail because he knew he was innocent and did not want to see him convicted. He said Cannon was a stranger to him and that he had never seen him before he came into the courtroom. "There was nobody with me at all when I held up the theatre. * * * Somebody besides Pete Cannon conspired with me to hold it up. * * * I won't tell who he was. * * * I went to the Pastime Pool Room (and, talked with McDuffie) but Pete Cannon was not with me."

McDuffie was recalled, after Whiteside had testified, and he reiterated that Cannon was the one who talked with him in the Pastime Pool Room. "I have never had any conversation with Whiteside. I guess he heard the talk I had with Cannon, if he could hear me. He was sitting close by."

McDuffie reported the alleged conversation to the sheriff on Sunday morning following the attempted robbery, in consequence of which Cannon was arrested.

Verdict: "Guilty as charged."

Judgment: Imprisonment in the State's Prison at hard labor for a term of not less than seven nor more than ten years.

The defendant Pete Cannon appeals, assigning errors.

Charles A. McCrea and Worth E. McKinney, both of Asheville, for appellant.

Dennis G. Brummitt, Atty. Gen., and A. A. P. Seawell, Asst. Atty. Gen., for the State.

STACY, Chief Justice (after stating the case).

Robert Whiteside, apparently alone and unassisted, attempted to rob the Imperial Theatre in Asheville on Saturday night, January 28, 1933. Did Pete Cannon aforetime agree to help him? This is the gist of the crime charged against him and of which he stands convicted.

A "conspiracy" is the unlawful concurrence of two or more persons in a wicked scheme--the combination or agreement to do an unlawful thing or to do a lawful thing in an unlawful way or by unlawful means. State v. Davis, 203 N. C. 13, 35, 164 S. E. 737; State v. Ritter, 197 N. C. 113, 147 S. E. 733. Indeed, the "conspiracy" is the crime and not its execution. State v. Wrenn, 198 N. C. 260, 151 S. E. 261. Compare Hyde v. U. S., 225 U. S. 347, 32 S. Ct. 793, 50 L. Ed. 1114, Ann. Cas. 1914A, 614. "As soon as the union of wills...